# Pradeep Kumar Gupta v. Engineer In Chief(Mechanical) Irrigation & Ors

- **Citation:** (2021) 8 ILRA 79
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-03
- **Case number:** Service Single No. 7577 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-gupta-v-engineer-in-chief-mechanical-irrigation-ors-47311
- **Pages:** 5

## Headnote

A. Service Law - Pension - If the
Competent Authority has extended any
benefit to an employee in compliance of
the judgment and order passed by this
Court or by any Constitutional Court, the
said benefit may not be reviewed/recalled
without getting appropriate order from
the concerning Court by filing review
application or challenging the said order
before the Superior Court. (Para 11)

In the present case, there is no averment on the
part of the State Government that for getting
the benefit of pay-scale in the year 1996
onwards the petitioner has ever misrepresented
before the Competent Authority, rather, said
benefit has been provided to the petitioner in
compliance of order of this Court. (Para 14)

B. If any mistake committed by the
department in making pay fixation of an
employee
is
rectified
after
the
retirement of an employee withdrawing
the benefit which have been paid to
such
employee
much
prior
to
the
retirement of an employee, such mistake
may not be rectified, consequently no
amount in the name of excess amount
shall be recovered from the employee
nor the pension of such employee could
be reduced. (Para 13)

The office memo dated 16.1.2020 (impugned
order) has been quashed being illegal, arbitrary
and violative of Article 14 and 16 of the
Constitution of India, as vide this order the
authority illogically and inappropriately recalled
its own order of compliance passed way back on
8.9.2011., i.e. after more than eight years.
(Para 15, 16)

Writ petition allowed. (E-3)

Precedent followed:

## Text

8 All. Pradeep Kumar Gupta Vs. Engineer In Chief(Mechanical) Irrigation & Ors.
79
shall be communicated to the petitioner
forthwith.

16. It is also observed that while
taking fresh decision the earlier impugned
order dated 22.9.2020 which is subject
matter of the present writ petition shall be
ignored.

17. The present writ petition is,
accordingly, disposed of in the aforesaid
terms.
----------
(2021)08ILR A79
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 7577 of 2021

Pradeep Kumar Gupta ...Petitioner
Versus
Engineer In Chief(Mechanical) Irrigation &
Ors. ...Respondents

Counsel for the Petitioner:
Purnima Gupta, B.R. Singh, Subodh Kumar
Gupta

Counsel for the Respondents:
C.S.C.

A. Service Law - Pension - If the
Competent Authority has extended any
benefit to an employee in compliance of
the judgment and order passed by this
Court or by any Constitutional Court, the
said benefit may not be reviewed/recalled
without getting appropriate order from
the concerning Court by filing review
application or challenging the said order
before the Superior Court. (Para 11)

In the present case, there is no averment on the
part of the State Government that for getting
the benefit of pay-scale in the year 1996
onwards the petitioner has ever misrepresented
before the Competent Authority, rather, said
benefit has been provided to the petitioner in
compliance of order of this Court. (Para 14)

B. If any mistake committed by the
department in making pay fixation of an
employee
is
rectified
after
the
retirement of an employee withdrawing
the benefit which have been paid to
such
employee
much
prior
to
the
retirement of an employee, such mistake
may not be rectified, consequently no
amount in the name of excess amount
shall be recovered from the employee
nor the pension of such employee could
be reduced. (Para 13)

The office memo dated 16.1.2020 (impugned
order) has been quashed being illegal, arbitrary
and violative of Article 14 and 16 of the
Constitution of India, as vide this order the
authority illogically and inappropriately recalled
its own order of compliance passed way back on
8.9.2011., i.e. after more than eight years.
(Para 15, 16)

Writ petition allowed. (E-3)

Precedent followed:

1. Sushil Kumar Singhal Vs Pramukh Sachiv
Irrigation Department & ors., (2014) 16 SCC
444 (Para 10)

Present petition assails office memo dated
16.01.2020, issued by Executive Engineer
concerned, reducing the final pay of the
petitioner, thereby reducing the pension.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri B.R. Singh, learned
counsel for the petitioner and the learned
Standing Counsel for the State-respondents.

2. By means of this writ petition, the
petitioner has prayed for the following
reliefs:-
80 INDIAN LAW REPORTS ALLAHABAD SERIES

"(i) to issue a writ, order or
direction in the nature of certiorari
quashing the order, as contained in
Annexure No.1, dated 16.01.2020 passed by
the opposite party No.4 and the letters
dated 28.05.2020 and 18.07.2019, as
contained in Annexure Nos.2 and 3, passed
by the opposite party No.2.

(ii) to issue a writ, order or
direction in the nature of mandamus
commanding the opposite parties not to
reduce the pension of the petitioner in
pursuance of Annexure No.1.

(iii) to issue a writ, order or
direction in the nature of mandamus
commanding the opposite parties to pay the
arrears of pay fixation dated 09.01.2018 in
tune of Rs.315145/- to the petitioner and
other arrears."

3. Learned counsel for the petitioner
has contented that the petitioner retired
from service on 31.01.2018 and before
his retirement his final salary has been
determined vide office memo dated
09.01.2018 (Annexure No.13) to the tune
of Rs.83300/- and on the basis of said
salary the pension of the petitioner was
fixed as Rs.41650/-, as indicated in
Annexure No.15 to the writ petition.
After about 2 years from his retirement,
the
impugned
office
memo
dated
16.01.2020 has been issued by the
Executive Engineer concerned reducing
the final pay of the petitioner to
Rs.80900/- thereby reducing the pension
of the petitioner.

4. Per contra, learned Standing
Counsel has submitted that since the pay
fixation of the petitioner was wrongly
made in the year 1996 and later on,
therefore, the required exercise has been
carried out pursuant to the letters dated
18.07.2019, 19.11.2019 and 02.12.2019.

5. Learned Standing Counsel has
drawn attention of this Court towards the
counter
affidavit
showing
Annexure
Nos.CA-1 to CA-3, which are letters dated
18.07.2019, 19.11.2019 and 02.12.2019,
wherein it has been indicated that salary of
the petitioner was wrongly fixed in the year
1996 and later on. Therefore, cautious
decision was taken to revise the salary of
the petitioner as per the Government
Orders. Further attention has been drawn
towards Annexure No.CA-4 of the counter
affidavit, which is a letter dated 02.01.2019
as copy thereof has been provided to the
petitioner, whereby it has been indicated
that the salary of the petitioner shall be
reduced in terms of the government order
as it has not been fixed properly.

6. As per learned Standing Counsel,
the petitioner has not submitted the reply to
the aforesaid letter dated 02.01.2019,
therefore,
the
impugned
order
dated
16.01.2020 has been passed reducing the
pay scale of the petitioner and such order is
well reasoned order which has been passed
considering
the
relevant
government
orders.

7. Replying the aforesaid contention
of learned Standing Counsel, Sri B.R.
Singh, learned counsel for the petitioner
has drawn attention of this Court towards
paras-10 to 13 of the writ petition wherein
he has categorically indicated that in the
issue in question the Division Bench of this
Court has passed the judgment and order
dated 29.03.2011 in Writ Petition No.786
(S/B) of 2009 allowing the writ petition in
part directing the opposite parties to
provide the notional promotion and other
consequential benefits to the petitioner with
effect from 01.09.1996. Notably, this fact
has not been denied by the State in the
counter affidavit. The operative portion of
8 All. Pradeep Kumar Gupta Vs. Engineer In Chief(Mechanical) Irrigation & Ors.
81
the judgment and order dated 29.03.2011 is
being reproduced here-in-below:-

"Accordingly, the writ petition is
allowed in part and impugned order dated
12th January 2009, passed by the Tribunal
stands modified subject to the aforesaid
directions. The claimant-respondents are
entitled for notional promotion and with all
consequential benefits w.e.f. 1st September,
1996."

8. Sri B.R. Singh, learned counsel for
the petitioner has submitted that the
aforesaid
judgment
and
order
dated
29.03.2011 has not been assailed by the
State Government and vide subsequent
office memo dated 08.09.2011 (Annexure
No.8) made compliance of order dated
29.03.2011.

9. Sri B.R. Singh, learned counsel for
the petitioner has therefore submitted that
since the petitioner was paid appropriate
pay scale strictly in accordance with law
and also in compliance of order of this
Court dated 29.03.2011, therefore, the
petitioner did not reply to the letter dated
02.01.2019 which was issued by the
Finance Controller of the department
addressing to the Executive Engineer of the
Department.

10. Sri B.R. Singh, learned counsel
for the petitioner has drawn attention of this
Court towards the decision of Hon'ble Apex
Court in re: Sushil Kumar Singhal vs.
Pramukh Sachiv Irrigation Department
and others reported in (2014) 16 SCC 444
referring para-7 thereof by submitting that
the case of the petitioner is squarely
covered with the decision of the Hon'ble
Apex Court inasmuch as the petitioner
retired from service in the month of
January, 2018 and by means of impugned
order dated 16.01.2020 the benefit, which
was provided to the petitioner in the year
1996 onwards, has been reduced. Para-7 of
the aforesaid judgment is being reproduced
here-in-below:-

"7.
Upon
perusal
of
the
aforestated G.O. and the submission made
by the learned counsel appearing for the
appellant, it is not in dispute that the
appellant had retired on 31st December,
2003 and at the time of his retirement his
salary was Rs.11,625/- and on the basis of
the said salary his pension had been fixed
as Rs.9000/-. Admittedly, if any mistake had
been committed in pay fixation, the mistake
had been committed in 1986, i.e. much
prior to the retirement of the appellant and
therefore, by virtue of the aforestated G.O.
dated 16th January, 2007, neither any
salary paid by mistake to the appellant
could have been recovered nor pension of
the appellant could have been reduced."

11. Having heard learned counsel for
the parties and having perused the material
available on records, I am of the considered
opinion that if the Competent Authority has
extended any benefit to an employee in
compliance of the judgment and order
passed
by
this
Court
or
by
any
Constitutional Court, the said benefit may
not be reviewed/ recalled without getting
appropriate order from the concerning court
by filing review application or challenging
the said order before the Superior Court.

12. In the present case, admittedly, in
compliance of the judgment and order
dated 29.03.2011 passed by the Division
Bench of this Court in Writ Petition No.786
(S/S) of 2009 and other connected matters
the benefit has been given to the petitioner
on 08.09.2011. Admittedly, no review has
been sought by the State Government
82 INDIAN LAW REPORTS ALLAHABAD SERIES
seeking review of order dated 29.03.2011
and the said order has not been assailed
before the Superior Court. As a matter of
fact, the review of order dated 08.09.2011
(Annexure
No.8)
has
been
sought
preferring notice to the petitioner on
02.01.2020 and later on the said order has
been reviewed by means of order dated
16.01.2021 (Annexure No.1), which is not
legally permissible. I wonder the manner in
which the earlier compliance order dated
08.09.2011 has been reviewed by means of
office memo dated 16.01.2020 which is not
appreciated.

13. Besides, the Hon'ble Apex Court
in re: Sushil Kumar Singhal (supra) has
clearly held that if any mistake committed
by the department in making pay fixation
of an employee is rectified after the
retirement of an employee withdrawing the
benefit which have been paid to such
employee much prior to the retirement of
an employee, such mistake may not be
rectified, consequently no amount in the
name of excess amount shall be recovered
from the employee nor the pension of such
employee could be reduced.

14. In the present case, there is no
averment on the part of the State
Government that for getting the benefit of
pay scale in the year 1996 onwards the
petitioner has ever misrepresented before
the Competent Authority, rather, the said
benefit has been provided to the petitioner
in compliance of order of this Court as
observed above. The specific averments to
this effect made in paras-10 to 13 of the
writ petition has not been denied by the
State in the counter affidavit.

15. I am restraint to observe that the
authority concerned should refrain itself in
passing inappropriate and illogical order
recalling its own order passed way back
inasmuch as in the present case the
appropriate order of compliance has been
passed on 08.09.2011 (Annexure No.8),
which has been recalled vide office memo
dated 16.01.2020 (Annexure No.1) i.e. after
more than eight years. It is also to be noted
here that just before 20 days of retirement
of the petitioner the office memo dated
09.01.2018 (Annexure No.13) was passed
determining
the
final
salary
of
the
petitioner to the tune of Rs.83300/- and the
pension of the petitioner has been fixed on
the basis of the aforesaid office memo
dated 09.01.2018.

16. Considering the aforesaid facts
and circumstances of the issue and the
dictum of Hon'ble Apex Court in re: Sushil
Kumar Singhal (supra), I hereby set aside/
quash the impugned order dated 16.01.2020
passed by the opposite party No.4 being
illegal, arbitrary and violative of Article 14
and 16 of the Constitution of India.

17. Consequently, the order dated
28.05.2020 (Annexure No.2) whereby the
Executive Engineer has issued direction to
modify the pension of the petitioner is also
quashed/ set aside.

18. A writ in the nature of mandamus
is issued commanding the opposite parties
not to reduce the pension of the petitioner
pursuant to the office memo dated
16.01.2020, which has been quashed by
this court and the petitioner shall also be
entitled for all consequential benefits
ignoring the impugned office memo dated
16.01.2020. The opposite parties shall
make compliance of the aforesaid order
within a period of two months from the
date
of
presentation
of
a
certified/
computerized copy of this order, failing
which, the petitioner shall be entitled for
8 All. Dharmendra Kumar Yadav Vs. State of U.P. & Ors.
83
interest at the rate of 8% per annum on the
dues.

19. Accordingly, the writ petition is
allowed.

20. No order as to cost.
----------
(2021)08ILR A83
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.07.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 13284 of 2018

Dharmendra Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Kishor Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Arrears of salary - If the
punishment order was declared non-est in
the eyes of law, then the benefit of salary
from the date of dismissal till the date of
reinstatement may not be denied. It is
normal rule that incumbent is entitled for all
consequential benefits as for he was never
terminated. (Para 5)

When an order of termination by way of
punishment i.e dismissal or removal is set
aside being in violation of principle of
natural
justice,
such
an
order
of
punishment renders in nullity and legal
consequence is that concerned employee
was never terminated by way of removal
or dismissal and has already continued in
service. That being so, question of direction of
reinstatement in fact is a misnomer. Since such
a person in law continued in service without any
interruption as if no order of termination was
ever
passed.
It
is
only
to
avoid
any
administrative
doubt
that
a
direction
of
reinstatement is normally given but the nature
of such an order is nothing but a declaration
that termination of service by way of dismissal
or removal is a nullity and the natural
consequence is that incumbent concerned is
deemed to continue in service as for he was
never terminated.

Writ petition allowed. (E-3)

Precedent followed:

1. U.P.S.R.T.C. & ors. Vs Presiding Officer
Labour Court, Faizabad & anr., 2019 (5) AWC
4287 (LB) (Para 4)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Ajay Kishor Pandey,
learned counsel for the petitioner and
learned Standing Counsel for the Staterespondents.

2. By means of this petition, the
petitioner has prayed following reliefs:-

"i) issue a writ, order or direction
in the nature of certiorari quashing the
impugned order dated 25/11/2017 passed
by Opposite party no.3.

ii) issue a writ, order or direction
in the nature of mandamus commanding
the opposite parties to pay all back wages,
increment with 12% interest and the
seniority maintained at the time of joining."

3. Learned counsel for the petitioner
has contended that since the impugned
order of dismissal was illegal and arbitrary,
therefore, it was quashed by this Court vide
judgment and order dated 17.11.2016
passed in Service Single No.9088 of 2016;
Dharmendra Kumar Yadav Vs. State of
U.P. and others. Sri Pandey has further